Union access rules are not working

Ever been to a mining or oil and gas operation? Molten metal, gas plants, shipping, earth-moving equipment, high-tech infrastructure, indigenous rock art, sophisticated safety processes; all can and often do form part of site induction and access conditions.

Accompanying and moving visitors around resource sector sites is a major exercise and excessive and unnecessary visitations adversely hit productivity and profitability.

With this in mind, the resources sector had some comfort when Labor in opposition promised to retain the same sensible and balanced approach to union site access that had applied under Howard, Keating and Hawke governments. Clearly established rules recognised a small number of unions relevant to the particular workplace. The rules of “conveniently belong" and “effectively represent", detailed access. Everyone knew where they stood and the system worked.

In 2007, the then deputy opposition leader,
Julia Gillard,
was asked what she would do if Labor failed to deliver on its pledge to retain these union right of entry provisions.

She replied: “I’m happy to do whatever you would like. If you’d like me to pledge to resign, sign a contract in blood, take a polygraph, bet my house on it, give you my mother as a hostage, whatever you’d like … we will be delivering our policy as we have outlined it."

This promise was not kept.

In government, Ms Gillard abandoned sensible union right of entry in favour of a system that allows site access to a multitude of unions based on their rules.

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Union rules are arcane, specialised and highly legalistic documents, including pages and pages of highly technical and completely disorganised verbiage.

They are completely unfit for the purpose of controlling the day-to-day practice of site access and workplace bargaining. An employer trying work out whether they are compelled to allow union access to a worksite often requires help from specialist IR legal experts. Even after such advice, union rules are such a complicated mess that even the most eminent legal minds and institutions can struggle to make head or tail of them.

Employers have no objection to sensible and balanced laws allowing unions to enter workplaces to access their members and conduct legitimate union business.

However, recent experience on many resource sector sites is that union “right of entry" visits are overwhelmingly membership fishing expeditions, often by competing unions, and often involving hyper- intensive selling to a near captive audience.

Last month it was reported that using the new right of entry laws, the AWU made 156 site visits to BHP’s Worsely Alumina site in 2012 and a further 175 in 2011. Woodside’s Pluto project also experienced more than 200 union site visits in the first 90 days of the so called Fair Work Act. These are not isolated examples.

The changed access rules have also had negative consequences for bargaining.

As with so much of the current system, union right of entry and representation rules actually encourage disputes and make it harder to reach agreement.

The architects of our bargaining system, including key union strategists such as former ACTU secretary Bill Kelty, recognised the union movement would be strengthened by having fewer, stronger unions, with clearly delineated coverage. They also recognised effective enterprise bargaining would rely on fewer better qualified people sitting around the table to negotiate.

When I ran negotiations for an employer of more than 5500 people in the early 1990s, I saw the consolidation of union negotiators from 28 to five, with positive benefits for everyone involved.

However, since 2009 the system has gone backwards. There is now a complex system of union representation and routinely upwards of 30 separate representatives try to negotiate agreements.

This makes negotiation considerably more difficult, protracted and costly and further removed from addressing declining productivity, efficiency and competitiveness.

The solution is simple. Employers, employees, and trade unions need the government to make good on the Prime Minister’s pledge of 2007.

The system should be returned to the long-standing and widely supported status quo that preceded the so-called Fair Work Act.